The Green Party of California would like to thank Assemblymember Donnelly for bringing a bill forward in AB1170, that attempts to address the issue of Proposition 14 (and the Top Two primary system) possibly causing the state's long-time, smaller ballot-qualified parties to lose ballot status, along with the loss of voter choice that would result.

Although we appreciate the intent of AB1170, our position on the bill as currently drafted is “oppose unless amended.” In the attachment below that follows this letter, we briefly address the general issue of the negative effects of Proposition 14 on the state's smaller, ballot-qualified parties and then provide a rationale for amendments to address this, that we support. Those amendments are:

(1) Lower the existing voter registration threshold in § 5100(b), from retaining statewide registration equaling at least 1% of the total votes cast at the preceding gubernatorial election, to 1/3 of 1% of the total number of registered voters.

(2) Expand the general election vote test in § 5100 to include receiving at least 1/3 of 1% in the previous presidential election, such that receiving such a percentage would guarantee ballot access for four years, as it does for statewide offices in § 5100(a).

(3) Substantially lower the signature-in-lieu threshold in § 8106(a), which for a statewide office was formerly 150 signatures for a candidate from a smaller, ballot-qualified party, and now as a result of the Top Two system, is 10,000 signatures for that same candidate for that same office.

(4) Restore the right to have write-in candidacies in the general election.

We also have strong concerns with any approach that depends upon a primary election vote test and explain our rationale for this below.

Green Party of California analysis of AB1170 and rationale for suggested amendments

Analysis: Without any public hearings or debate about its implications - despite it being a radical change to the state's electoral system -- Proposition 14 was placed upon the June 2010 ballot in the middle of the night (in February 2009) as part of a budget deal by the California State Legislature. Proposition 14 has subsequently had profoundly negative effects upon California’s long-standing, smaller ballot-qualified parties, despite there being no evidence this was part of the voters' intent in narrowly approving it.

Together with its implementing statutes and other changes to the state's Elections Code, Proposition 14 creates a series of choke points in our democracy, making it virtually impossible for candidates from smaller ballot-qualified parties to be on any general election ballot, especially statewide, as well as extremely difficult to even be on a primary election ballot. As a result, Proposition 14 both greatly limits these parties' ability to be visible and communicate their message, which limits voters' options, and makes it harder for these parties to raise funds and retain/increase their membership, which threatens their survival.

More directly, Proposition 14 threatens the ability of these long-time qualified parties to remain ballot-qualified, by de facto taking away one of the two ways under the state's Elections Code that a party can remain ballot-qualified – the general election vote test for statewide office. This has happened despite California voters having consistently supported ballot status for the Green, Libertarian and the Peace and Freedom Parties via this very vote test, over the many years since each of them first qualified.

(1) Lower the existing voter registration threshold in § 5100(b), from retaining statewide registration equaling at least 1% of the total votes cast at the preceding gubernatorial election, to 1/3 of 1% of the total number of registered voters.

This amendment to § 5100 has been negotiated with the Secretary of State's office and is a compromise from a much lower threshold that was contained in Proposition 62 in 2004, a previous Top Two initiative in California that anticipated the de facto loss of the general election vote test for the state's smaller, ballot-qualified parties and attempted to compensate for it. An extensive set of arguments for this position is contained in the attached memo from our party.

(2) Expand the general election vote test in § 5100 to include receiving at least 1/3 of 1% in the previous presidential election, such that receiving such a percentage would guarantee ballot access for four years, as it does for statewide offices in § 5100(a).

After the passage of Proposition 14, California has a hybrid electoral system, with the previous system still in place for president (where all ballot-qualified parties have a candidate on the general election ballot), and the Top Two system for other state and federal races. Including a presidential election vote test in § 5100] would recognize this hybrid nature, and the fact that a reasonable vote test has been vital to maintaining ballot status for the Green, Libertarian and the Peace and Freedom Parties. The 1/3 of 1% threshold is based upon historical performances of these smaller parties in presidential races where voters are less likely to vote for candidates of smaller parties than in down-ticket races.

(3) Substantially lower the signature-in-lieu threshold in § 8106(a), which for a statewide office was formerly 150 signatures for a candidate from a smaller, ballot-qualified party, and now as a result of the Top Two system, is 10,000 signatures for that same candidate for that same office. Having a primary election vote test, as recommended in AB1170, means nothing if candidates can't get on the primary ballot in the first place.

The 2012 election (the first with the increased ballot-access barrier in § 8106(a) had the fewest alternative-party candidates on the primary election ballot since 1966, when only the established Democratic and Republican parties were on the ballot. Now in 2014, it appears that the state's smaller, ballot-qualified parties are facing great difficulties qualifying even a few candidates each for statewide office, when previously they were all able to qualify a full slate for all seven statewide constitutional offices.

Smaller parties simply do not have the infrastructure to gather large numbers of signatures or pay the filing fees for multiple offices. As a result, their candidates either have to pay expensive filing fees or not run at all, where previously they could gather enough signatures to avoid paying any filing fee. Under the Top Two system, running for office overall becomes more expensive, because now everyone has to reach the entire electorate in the primary. As a result, the proportionate increase in cost and difficulty is several times greater for candidates of the smaller parties, and the need for such funding and organization comes much earlier -- all of this making it extremely difficult for these candidates to run and qualify for the ballot. There is also a major disincentive to go through such effort (or pay such fees), when the result is that candidates are only on the ballot for less than three months, making it even harder to attract quality candidates willing to go through the effort for such little return.

Proposition 14 was presented to voters as increasing voter choice in the primary election, and there was nothing in Proposition 14 that told voters that its passage would make it much harder for candidates from the smaller ballot-qualified parties to appear on the ballot, yet that is exactly what the change in § 8106(a) has done.

(4) Restore the right to have write-in candidacies in the general election.

California voters have had the right to consider general election write-in candidacies since the state's founding in 1850, yet it was eliminated by the legislature in 2012 via AB1413 with virtually no public debate, even though such a radical loss of historical voter choice was not placed before the voters as part of Proposition 14. If the legislature believes that the public supports this loss of historic choice, it should put the question before the voters for a public vote. Otherwise this right should be restored immediately.

In addition to these reforms, the Green Party wants to share its concerns with the approach of AB1170 to rely upon a primary vote test.

(a) There is no empirical data on how the state’s smaller parties will perform in the statewide primaries under this new system. We do not want to agree exclusively to a primary election vote test in advance of 2014 based upon speculation, and then not reach that number and be off the ballot as a result of an uninformed guess.

(b) There are also fundamental differences between a Top Two primary and a general election under the old system, that make a Top-Two primary vote test a poor and inappropriate measure of public support for these parties.

First, primary elections tend to have a substantially lower turnout than general elections - and under the state’s first experiment with the Top Two, turnout was at an all-time low. In addition, primary voters in California tend to be whiter, wealthier and more conservative than in the general election. Together this means that the demographics of a primary election vote test may squeeze out parties that have otherwise historically found meaningful representation in a general election, when more voters are participating.

Second, under this new law, all primary candidates are on a single ballot, splitting the collective primary vote; whereas under the old system, many of these same candidates would have been eliminated in the primary and some votes cast for them would have gone to the smaller-party candidates in the general election, thus making it more difficult under the Top Two to get the votes required, if the percentage of the vote required remains the same as in a general election vote test.

Third, under the Top Two, as already mentioned, the vastly increased number of signatures in lieu of filing fees has made it extremely difficult for smaller-party candidates to even be on the primary ballot in the first place Therefore it is simply unreasonable to place the test of a party’s support in an election in which they may not be able to participate at all, or if they do, only in a weakened condition..

Fourth, under the Top Two system, there is a greater disincentive to vote for smaller-party candidates owing to 'spoiler' and 'lesser-of-evil' considerations, than even existed under the previous system. In the old system, the 'spoiler' mentality arose only in a general election where there was only one seat at stake – and when there was no doubt about the ultimate winner, this logic didn’t apply. But now under the Top Two, the 'spoiler' and 'lesser-of-evil' dynamic applies to two seats, not one; and even if the ultimate winner in November may be obvious, there is the still the incentive to try and use one’s vote to get a counter perspective into the general election. Therefore under the perverse incentives of the Top Two, a vote may ask “why vote for a smaller-party candidate in the primary, even if that candidate best reflects my views, instead of someone who might have a chance at finishing in the top two?” Therefore, to try and gauge support for a party, when the very nature of the voting system is itself a disincentive to express that support, is simply not reasonable.

For all these reasons, the Green Party believes that the main changes to the state's Elections Code in AB1170 (or any other bill meant to compensate for the negative effects of Proposition 14 on the state's smaller ballot-qualified parties) should be the four changes we recommend.

Finally in closing we ask you, our elected representatives, do you really believe it was the intent of the voters that supported Proposition 14, to crush the state's long-standing, smaller ballot-qualified parties, and to eliminate the many diverse perspectives they have historically provided within our political system? That possibility was nowhere to be found in the Attorney General's Ballot Statement and Summary, it was ignored by the major media's press coverage of the Proposition 14 campaign, while opinion pieces about it from our parties and others were declined by most of the state's major daily papers. Furthermore, the financial backers of Proposition 14 spent millions to promote their arguments in favor of Proposition 14, but also mentioned nothing of these potential negative effects. Therefore its hard to conclude that it was the intent of the voters in narrowly approving Proposition 14, to de facto eliminate the state's long-standing, smaller, ballot-qualified parties, and therefore we ask you to seriously consider our modest proposals to partially rectify this.

Is there really so much to fear from the presence of a few small parties, that they have to be de facto legislated out of existence by the state legislature? The reality is that the state legislature did not exercise its due diligence when it failed to hold public hearings and consider the multiple and complex implications of such a radical change in our electoral system, when it placed Proposition 14 on the June 2010 ballot. We believe your mandate as our elected representatives is to come down on the side of more voter choice, not less, and for all these reasons above, hope that you include our suggested amendments in your bill.